Activist sues San Francisco PD after warrantless search of his phone

First civil suit in California to fight warrantless cell phone search at arrest.

A San Francisco activist, a local attorney, and the American Civil Liberties Union (ACLU) of Northern California collectively filed a civil lawsuit Wednesday against the City and County of San Francisco and its police chief, alleging that the activist's rights were violated when a police officer warrantlessly searched his cellphone at the time of his arrest in January 2012.

Bob Offer-Westort of the Coalition on Homelessness, says in court documents that the suit stems from an incident where he was non-violently engaging in civil disobedience to protest a new city ordinance that made it illegal to camp in public places without permission. A spokesperson for the San Francisco Police Department said that the department does not comment on ongoing lawsuits.

The court documents, filed this week, charge San Francisco and its police department with violating Offer-Westort’s privacy, conducting an unlawful search and seizure, and violating his free speech under the United States Constitution and the California Constitution, among other allegations.

The ACLU claims that this is the first “civil suit in California to challenge warrantless cell phone searches at arrest.” In 2011, the California Supreme Court ruled in the case of People v. Diaz that arrestees’ phones can be searched without violating the United States Constitution.

“This suit brings a challenge under the California Constitution’s stronger guarantees of privacy and freedom from unreasonable search and seizure, as well as a challenge under the U.S. and California Constitutions’ guarantees of freedom of speech and association,” the ACLU wrote in a statement.

“Looking for text messages—how do you feel about that?”

On January 27, 2012, Offer-Westort pitched a tent in Jane Warner Plaza in the city’s Castro district. Inside that tent, he placed a sleeping bag, and he sat at the tent’s entrance with his mobile phone—an LG GU295, a slider phone—in his pants pocket. After some time, two San Francisco Police Department officers approached Offer-Westort and told him that his presence there violated the city’s penal code. The activist declined to move, and he was promptly arrested and taken to a police station.

After his arrest, but before his formal booking, the officer named in the documents as “Officer Chambers,” conducted a search of Offer-Westort’s phone. The plaintiff recounts what happened next in his court filing:

Offer-Westort was nervous about the police looking through his text messages because he had recently sent text message that included negative comments about a local politician and that he intended to relay exclusively to the message's recipient but otherwise to keep private; if this text message were made public it could adversely affect his ability to work with this politician and with other politicians.

Offer-Westort was therefore extremely concerned about the government reading his private text message about [the] politician; Offer-Westort asked Officer Chambers what he was doing [and] Officer Chambers stated something to the effect of: “Looking for text messages—how do you feel about that?”

Officer Chambers did not cease the search upon Offer-Westort’s objection, instead responding with statement to the effect of: “The California Supreme Court gives me the right after I arrest you.”

Officer Chambers continued with his search of Offer-Westort's cell phone, reading many of Offer-Westons text messages and relaying their contents to him, including three text messages Offer-Westort had not yet read himself as they had been received after he was arrested; Officer Chambers then left Offer-Westort handcuffed in the waiting room and continued his search of Offer-Westort's cell phone. At least twice over the next two hours Offer-Weston could see Officer Chambers in other parts of the station either scrolling through his cell phone or holding his cell phone.

In the course of the warrantless search of Offer-Westort's cell phone Officer Chambers read messages authored by individuals other than Offer-Westort who had not been arrested and messages that were unrelated to the crime for which Offer-Westort was arrested.

The City and County of San Francisco has yet to respond to the lawsuit.

Promoted Comments

This is why I have a password on my phone. Not because I think it can't be broken, but to make it absolutely clear that I consider the contents private and have taken reasonable precautions to protect that privacy.

This is why you passcode protect your phone and tell the cops to take a flying leap if they ask you to unlock it for them. However, based on the fact that he had a "slider phone" I doubt this was even an option for him.

IANAL, but I think the last sentence talking about messages from third parties not involved in the case is going to be a crucial point in determining the constitutionality of the officer's actions.

Maybe the list of plaintiffs could even be expanded to include individuals who sent Offer-Westort text messages intended for his private viewing only (which, really, is how they should treat all of his text messages).

This is why I have a password on my phone. Not because I think it can't be broken, but to make it absolutely clear that I consider the contents private and have taken reasonable precautions to protect that privacy.

Then hopefully it already has a PIN/Password/Pattern lock on it. Ours do but there is always a chance of guessing it or having the user give up the password. Wiping it from the server is a nice safemeasure.

Edit: And yes code words would be better. but with a locked device besides turning it off the next time it powers on and talks to the mail server it will wipe itself.

Please pause while the police dig through lawbooks to find something that kinda-sorta, if you're drunk and squint hard enough, implies that this isn't blatantly illegal.

Worse, when they loose, they'll just hand over some taxpayer money - which they don't care about because it's not really their money in the first place - and the cop who did it will get a week's paid vacation as punishment.

A cell phone is really unlike any other object you might have had in your pocket during an arrest in the past. Mine basically has my whole life on it. Seems like a stretch that a simple trespassing arrest would give the cops access to my entire life like that.

Having said that, IANAL, but I would suggest against asking someone to remote-wipe your phone in that situation. If there were evidence related to your crime (or I should say "alleged crime") or also if related to any other wrongdoing and you remote wiped it, you could be charged with destruction of evidence. Better that Officer Doe read the sexts from your girlfriend than that you give the DA a reason to charge you with an additional crime.

I'm curious why the officer asked for consent if he was convinced he didn't need it. Was it just force of habit, or could that come down in Bob's favor with his denial of consent?

Like ChuckStar wrote, I don't think he was really asking for consent. In asking "How do you feel about that" my guess is that he was probably trying to "read" the guy. Trying to see if there was anything in the messages that Offer-Westort would react to.

Basically I figure the cop was provoking him to see if he could nail him on something more egregious that pitching a tent in downtown.

Not reasonable: fishing expeditionReasonable: finding messages about coordinated disobedience efforts. Including but not limited to sabotage, threats to the officer's well being.

Probable cause comes into play there. Can the officer really justify thinking that he's part of a coordinated effort? If so, get a judge to sign off on a warrant and present it to search the phone legally.

Until that time, it's an unwarranted search - a LITERAL unwarranted search.

This is why I've enabled password protection on my iPhone, after the recent court rulings in Canada that stated a warrant wasn't needed for viewing the contents of an unlocked phone.

My entire life is on my phone, appointments, private conversations that are the equivalent of written mail correspondence, contacts, personal notes, etc. All of this used to be contained in and on physical objects in my home at one point, and required a warrant to acquire. Now enforcement and various organizations want to erode rights by insisting that electronic devices contained on one's person are not entitled to the same protections as before.

Yes, officer, I will give up my password for my phone, after you go in front of a judge and get a warrant.

You can't make the call you're suggesting because you don't have a phone.

They let you make calls from a phone in the jail.

Yep ... hence the "and you'd have to get them to let you use another" with the implication being "before he's molesting your phone." But at the point they allow you to make your call, I think he's already scrolling through your text messages since he probably grabbed it first thing.

This is why I have a password on my phone. Not because I think it can't be broken, but to make it absolutely clear that I consider the contents private and have taken reasonable precautions to protect that privacy.

Having a passcode or other lock on the phone might stop them from continuing to search it at the station, but if the officer took the phone within a few minutes of the last time it was used (unlocked by the owner, in other words), then the lock may not have re-engaged yet. My phone is set to only re-lock a few minutes after I turn it off, during that window it's still vulnerable.

I think this falls back to the date book/diary scenario. Having a standard diary with no lock = searchable. Having a diary with a built-in lock = not searchable.

I have never owned a cell phone that does not have a lock. Sure, it may have been just a PIN number, but it still had one. I think the crux of the matter is not the security factor, so much as it is the locked factor.

In this case, if his phone did not have a locking mechanism--and for those with merely "slide to unlock" mechanism without some kind of password/PIN/gesture/face/voice unlock--I feel the search is entirely legal. Just like merely having a cover on a book is not enough: it may keep prying eyes away in plain sight, but does not in any way prevent someone from simply lifting the cover.

Now, had he had a pass code on his phone, I feel it should be unconstitutional to compel someone to enter the pass code or circumvent the lock with forensic software without a search warrant.

Just my two cents. I own a cell phone and have it password protected. Just like my computers.

Here's what phones need: a dual password system where password 1 means unlock the phone and password 2 means wipe the phone. When they ask for your password, you can choose to give them the wipe password.

A question about auto-lock delay, kind of: if you are doing stuff on your phone, and a cop walks up to you to take your phone, almost any delay will be too long. Do all smart phones have an insta-lock button?

One other thing: most of the data on a smart phone also exists in the cloud. Do police have equally easy access to the cloud copies? In line with people's comments about locking the phone mostly fixing this issue, I'm guessing not.